Joint tenancy vs. tenants in common in a divorce

Written by dr. eugenia orr| 13/05/2017

How you split your property after a divorce may depend, in part, on how you held it in first place. (house image by hans slegers from Fotolia.com)

There are four forms of real property ownership: tenancy in common, joint tenancy, tenancy by entirety and community property. Tenancy in common and joint tenancy are common forms of co-ownership, but each state has different laws as to how the co-ownership forms are created and severed.

Joint Tenancy

In a joint tenancy, the property title is held through all owners collectively, as a whole. If there are more than two people, the death of one person does not terminate the ownership; the ownership simply goes to the two surviving owners. There is not a survivorship right in a joint tenancy and an owner cannot will their ownership to another. A joint tenancy may be terminated by mutual agreement of all owners, by conveying the property to third parties or through court action. It is vital to check with your state real property laws as to how a joint tenancy is created or severed; every state may be different. In a divorce, if all parties agree, the joint tenancy can be terminated as part of the divorce settlement.

Tenancy in Common

With tenancy in common, each tenant holds an undivided fractional interest in the property. One owner may control one-half or one-third of the property, but the property itself cannot be divided into a half or a third. Together the owners have unity of possession; in other words, they are entitled to possession of the property, together. It is the only form of co-ownership in which the owners can have unequal interest in the same property. Tenancy in common allows individual interest in the property, so that the interest can be sold, conveyed or transferred to another. In the event of an co-owner's death, the co-owner's interest can be willed to an heir. In a divorce, one may sell their share to the other without the ownership being dissolved or terminated through a court order. The deed will show the interest and how the property is owned by the couple.

Partition

A legal way to dissolve an ownership when all parties involved do not agree is through a partition suit or suit to partition. It is a request for action to partition the property. In Illinois, a partition suit is filed in the court of the county in which the property is located. Check with your state for details on how you may file a suit to partition.

In a Divorce

Either form of ownership can be severed through a court action. If a couple wishes to will their interest, the better co-ownership form is tenancy in common. Joint tenancy can be severed through mutual agreement, but a new deed will need to be signed stating the new ownership form.

Husbands and Wives

If you are a married couple, your ownership form may be tenants by entirety. It is a specific form of ownership for husbands and wives only, in which each has an equal, undivided interest in the property, and there are rights of survivorship. A husband or wife can convey title if both sign the deed. Check to make sure what your deed states is the co-ownership relationship.